TONG YING KIT v. SECRETARY FOR JUSTICE

CACV 293/2021

[2021] HKCA 1006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 293 OF 2021

(ON APPEAL FROM HCAL NO. 473 OF 2021)

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DECISION ON COSTS

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Hon Poon CJHC (giving the Decision on Costs of the Court):

1.  By a judgment dated 22 June 2021 ([2021] HKCA 912), we dismissed the applicant’s appeal and reserved the question of costs for disposal on paper.  Pursuant to our direction at [84], the parties have filed their respective written submissions on costs. The putative respondent seeks costs of the appeal, including the respondent’s notice, to be taxed if not agreed, with a certificate for three counsel.  The applicant submits that there should be no order of costs.

2.  The starting point is that costs of the appeal should follow the event: Re Leung Kwok Hung (2014) 17 HKCFAR 841, at [17(8)], especially when the Court of Appeal’s reasons for dismissing the appeal are broadly the same as the first instance judge’s reasons for refusing leave.

3.  Mr Dykes SC, for the applicant,[1] submits that our reasoning for dismissing the appeal are not broadly the same as the Judge’s reasons for refusing leave.  However, on a fair and objective reading of our and the Judge’s judgments, it is clear that the reasons adopted by both courts are in substance similar.  Significantly, both courts adopted the well-established purposive construction to NSL 46(1) and held that the certificate issued by the Secretary for Justice for a non-jury trial is a prosecutorial decision protected by BL 63.

4.  Mr Dykes then invokes the public interest litigation principle as enunciated in Chu Hoi Dick v Secretary for Home Affairs (No 2) [2007] 4 HKC 428, recently applied in Kwok Cheuk Kin & Another v Director of Lands & Others [2021] HKCA 915. He argues that all the three criteria for applying the principle are satisfied: the applicant had properly brought proceedings to seek a ruling from the court on a point of general public importance so that the litigation is for the benefit of the community; the Court’s judgment had contributed to the proper understanding of the law in question; and the applicant has no private interest in the outcome of the application.

5.  However, as rightly pointed out by Mr Suen SC, for the putative respondent,[2] the litigation was not properly brought when both the Judge and we held that it was not reasonably arguable.  It would be against public interest to deploy judicial and public resources for resolution of an argument which has no prospect of success: Chu Hoi Dick, supra, at [23].  It is particularly so when the applicant chose to pursue a plainly unarguable appeal after losing the case below on substantially the same grounds.  The applicant must be held liable for the costs of the appeal.

6.  On counsel certificate, we accept that the issues raised in the appeal are of great general public importance, and counsel had to work under compressed time because we had expedited the appeal.  However, we do not see sufficient basis for awarding a certificate for three counsel.  We think engagement of two counsel would suffice.

7.  For the above reasons, we order the applicant to pay the putative respondent costs of the appeal, including the costs of the respondent’s notice, to be taxed if not agreed, with a certificate for two counsel.